As a punishment for its "willful defiance" of a court order, a judge on Monday ordered the Arkansas Department of Human Services to publish statistics on its website related to its failures in assessing needs of disabled Medicaid recipients.
Pulaski County Circuit Judge Wendell Griffen also referred two department attorneys and a top agency official to the Supreme Court Committee on Professional Conduct for a determination on whether they are competent to continue representing the agency in the case.
The sanctions came in response to the department's enactment of an emergency rule in May allowing it to continue using an algorithm to allocate hours of home-based care to the 8,800 people served by the ARChoices program.
Griffen on May 14 had ruled that the department failed to provide the public notice required under the state's Administrative Procedure Act when it adopted rules in 2015 governing the use of the algorithm. The new system resulted in reductions in hours for many recipients.
He had barred the department from using the algorithm until rules authorizing its use had been "properly promulgated."
Department attorneys argued that it was attempting to comply with Griffen's order by enacting the emergency rule, which they said wasn't expressly prohibited by the order.
The Administrative Procedure Act allows such rules to be enacted without public notice in response to "an imminent peril to the public health, safety or welfare" or to comply with a federal law or regulation.
At a May 23 hearing, in which Griffen found the department in contempt of court, and in his written order on Monday, the judge called that argument "manifestly preposterous."
"To accept the claim that DHS is or has been confused about what 'properly promulgated' means as that term appears in the permanent injunction requires that one ascribe to learned counsel for DHS -- Richard Rosen and [Chief Counsel] David Sterling -- a degree of legal imbecility this Court does not endorse," Griffen wrote in the order on Monday.
"The Court rejects the idea that DHS leaders and its legal counsel are imbeciles," Griffen wrote.
"However, because DHS strangely claims, through legal counsel, to have been confused about the obligation to satisfy the notice and public comment requirements for rulemaking prescribed in the Administrative Procedure Act, the Court will refer Rosen, Sterling, and [Division of Aging, Adult and Behavioral Health Services Deputy Director Mark] White to the Supreme Court Committee on Professional Conduct, as that body is tasked with investigating and determining whether the knowledge, competence, and conduct of lawyers meets the ethical standards of the legal profession in Arkansas found in the Arkansas Code of Professional Conduct."
Griffen suspended the emergency rule on May 21. In his order on Monday, he also chastised the department for its contention that his orders have left it unable to process new applications for assistance under ARChoices or assess the needs of those on the program.
Jonesboro-based Legal Aid of Arkansas, which filed the lawsuit that led to Griffen's orders, argues that the department can allow its nurses to use their discretion in awarding hours, as they did before the department began using the algorithm in 2016.
The department says the use of the algorithm, which assigns recipients to "resource utilization groups" based on their answers to questions about their needs, is required under the terms of the federal waiver authorizing ARChoices. An official with the federal Centers for Medicare and Medicaid Services sided with the department on that view in an email to the department on June 12.
As of Monday, the department had a backlog of 1,116 applications that had not been processed and 1,377 program participants who were overdue for evaluations, Human Services Department spokesman Amy Webb said in an email.
Griffen called the department's claim that it can't allow nurses to use discretion in awarding hours "the latest example of DHS defiance of the [May 14 order], its callous disregard for the rule of law, and its calculated disingenuous representations to this Court, the disabled community it is legally obligated to serve, and the general public."
He ordered the department to publish on its website within five days the number of people who were assessed or reassessed by its nurses each month before 2016 and the number it has "failed or refused to reassess each month" since February 2017, when Griffen issued a temporary order barring the department from reducing the care hours allotted to seven recipients named as plaintiffs in the lawsuit.
He also ordered the department to update the information each month. He said the department must also provide him and Legal Aid attorney Kevin De Liban with the names and contact information of each person it has failed or refused to reassess since Jan. 1, 2016, and to update that information each month.
The department has filed a notice that it will appeal the May 14 order to the Arkansas Supreme Court. Webb said the agency will comply with the latest order, which it is reviewing.
De Liban said he's "thankful the judge recognizes DHS' pattern of dishonesty in this case and the harm that DHS is causing to people that it's supposed to serve."
Although De Liban had asked Griffen to award legal fees to Legal Aid and order the department pay a fine, he said he wasn't disappointed that the judge didn't grant those requests.
"He ruled that DHS was being willfully disobedient of his order, and that's what's most important to us," he said.
A Section on 06/26/2018